Prince v. Boston & Lowell Railroad

Colt, J. The principal contest before the jury, and most of the instructions and rulings of the court, grew out of the respective claims of Larocque and Bissonette to the original ownership of the oats, the present title to which was in controversy. The plaintiffs claim title under Larocque, by virtue of a consignment to them to cover advances, and a delivery to a common carrier for them. It was conceded that, if Bissonette was the original owner, and shipped the property on his own account, then the title of the plaintiffs must fail. The jury were unable to agree upon the separate question submitted to them, whether the oats, at the time of shipment, were the property of Larocque or Bissonette. This disagreement renders it unnecessary to discuss many questions, raised at the trial, relating to this part of the case, and which are not now, and may never become, material. Under the instructions given upon the other branch of the case, namely, upon the question whether Larocque passed his title to the plaintiffs, a general verdict was found for the defend [546] ants. The jury were told, in substance, that the burden was on the plaintiffs to satisfy them, so as not to leave them in doubt, that the bill of lading signed by Joseph Savageau was valid and binding; that a bill signed by one who was not master w ould have no operation to pass title ; that, if signed by one who was master, or by his request or authority, it would be valid; and that the jury need go no further, if they found that Joseph was not, and Xavier Savageau was, master, and signed the defendants’ bill of lading. These instructions proceed apparently upon the ground that the only mode in which title could be passed from Larocque to the plaintiffs was by transfer of a regular and valid bill of lading to them. And those of the jury, therefore, who found that Larocque was the original owner of the property, must have been brought to the other conclusion, namely, that there had been no transfer of title from him to the plaintiffs, under the instructions given, by reason of the failure to produce a valid and binding bill of lading. We must therefore assume, in disposing of these exceptions, that the plaintiffs’ claim of the original ownership of Larocque, which has not as yet been negatived by the jury, is well founded, and that he was, at the time of the shipment, the true owner. It is to be noted, that the question, here presented, does not arise between two persons claiming title to the same property, as holders of two separate bills of lading, one of which is genuine and the other not, and both transferred by the former owner. To such a state of facts, the rulings given would be more appropriate. The case at bar is narrowed to a controversy between the plaintiffs, claiming to have acquired title from the true owner, and the defendants, who, in disposing of this question, must be regarded as having no title, or rights of possession, derived from him. And, in the opinion of the court, the instructions given, as applied to this state of the case, were erroneous. It is too well settled to need a citation of cases, that delivery to a carrier with intent, on the part of the vendor or consignor to pass the property, either absolutely or specially, to the .pur chaser or consignee, who has made advances, is effectual as a [547] delivery to that end. The carrier is, in such cases, in contemplation of law, the bailee of the person to whom, and not by whom, the property is sent. And a delivery to him, with no jus disponendi reserved to the shipper, is as effectual as if to the consignee himself. It is always a question of the intention with which the act is done. And all acts, declarations and circumstances, accompanying it, and which indicate its purpose, are admissible in evidence. Taking a bill of lading or shipping receipt in the name of the consignee, or, when taken in the name of the consignor, a transfer to him, is, it is true, the most usual and satisfactory mode of indicating the intention. It is not, however, the exclusive mode. In Bryant v. Nix, 4 M. & W. 775, 791, Baron Parke, speaking of certain receipts given by the master of a canal boat for oats consigned to a factor who had made advances, says that, “ as evidence of such a transaction, it is immaterial whether the instruments are bills of lading or not; and it might equally be proved through the medium of carriers’ or wharfingers’ receipts, or any other description of document, or by correspondence alone.” So where the bill of lading has not been transmitted to, or reached, the consignee, or when none has been given, the invoice, or any other instrument, which specifies or enumerates the property sold, may be substituted for it. Haille v. Smith, 1 B. & P. 563. Anderson v. Clark, 2 Bing. 20. Gardner v. Howland, 2 Pick. 599. Gibson v. Stevens, 8 How. 384. In the case at bar, there was evidence of such delivery, proper to submit to the jury, although the bill of lading was signed by a party who was not authorized. The indorsement by Larocque and delivery of the instrument itself, his letter of November 19 to the plaintiffs, the policy of insurance made payable to them, the testimony of Larocque, with other circumstances connected with the transaction, were admissible to show an actual delivery to a carrier for the plaintiffs. The several instructions, asked for by the plaintiffs, upon this part of the case, should have been given. Under such instructions the jury might not have found for the defendants. 1 Smith Lead. Cas. (6th Am. ed.) 891. Benjamin on Sales. 130, 282, 514. [548] It is unnecessary to pass upon those exceptions which relate to the rejection and admission of evidence, because on the new trial, which must be had, the questions will necessarily be presented to the court in a different aspect. Exceptions sustained.